State v. Carrillo

                                      192

   Argued and submitted January 3, 2019; convictions on Counts 15 and 18
    reversed, remanded for resentencing, otherwise affirmed May 13, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  LARRY ANDREW CARRILLO,
                       Defendant-Appellant.
                  Deschutes County Circuit Court
                     16CR21979, 16CR26838;
                   A165842 (Control), A165843
                                  

    Defendant was convicted of numerous offenses arising from six domesticviolence incidents. On appeal, he argues that the trial court erred in denying his
motion to suppress evidence seized from his bedroom, because his intimate partner A lacked actual authority to consent to the search and seizures. Defendant
also argues that the trial court erred in admitting evidence of his prior acts of
domestic violence against a former intimate partner, B. Lastly, he argues that
the trial court erred in denying his motion for judgments of acquittal on Counts
15 and 18, both of which charged unlawful use of a weapon, because there was
no evidence that the discharges occurred within urban growth boundaries.
Held: The trial court did not err in denying defendant’s motion to suppress,
because the evidence was sufficient to establish that A had actual authority to
consent to the search and seizures. As for the evidence of prior domestic violence against B, any error in admitting that evidence was harmless. The trial
court erred, however, in denying defendant’s motion for judgments of acquittal on
Counts 15 and 18, because, notwithstanding a deficiency in the indictment, the
state had to prove that the discharge occurred within urban growth boundaries
and failed to do so.
    Convictions on Counts 15 and 18 reversed; remanded for resentencing; otherwise affirmed.



    Stephen P. Forte, Judge.
   Jason E. Thompson argued the cause for appellant. Also
on the brief was Ferder Casebeer French & Thompson, LLP.
   Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
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 (2020)                        193

  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.*
   AOYAGI, J.
   Convictions on Counts 15 and 18 reversed; remanded for
resentencing; otherwise affirmed.




______________
   * Egan, C. J., vice Hadlock, J. pro tempore.
194                                                         State v. Carrillo

           AOYAGI, J.
        Defendant was convicted of five counts of unlawful
use of a weapon (UUW), ORS 166.220; six counts of menacing, ORS 163.190; two counts of fourth-degree assault,
ORS 163.160; two counts of coercion, ORS 163.275; and one
count of strangulation, ORS 163.187. The victim of 14 of
those crimes was defendant’s intimate partner, A, and the
victim of the other two crimes was defendant’s adult son, M.
On appeal, defendant raises seven assignments of error. We
write only to address the second, third, and fourth assignments. We reject the first and sixth assignments without
written discussion, and we do not reach the fifth and seventh
assignments.
         In the second assignment, defendant challenges the
denial of his motion to suppress evidence seized from his
bedroom. In the third assignment, defendant challenges the
admission of evidence of previous acts of domestic violence
against a former intimate partner, B. In the fourth assignment, defendant challenges the denial of his motion for judgment of acquittal on two UUW charges, Counts 15 and 18.
For the reasons that follow, we reject the second and third
assignments but agree that the court erred with respect to
the fourth assignment.1 Accordingly, we reverse defendant’s
convictions on Counts 15 and 18, remand for resentencing,
and otherwise affirm.
                               BASIC FACTS
         Different facts are relevant to each assignment
of error, and different standards of review apply to each
assignment of error. We therefore state only the basic facts
here and provide additional facts in discussing each assignment of error.
       Defendant and A married in 2003 and divorced in
2009. After the divorce, A moved into her own apartment
     1
       Because of our disposition of the fourth assignment, we do not reach the
fifth assignment, which involves the same two UUW convictions, or the seventh
assignment, which pertains to sentencing. See former ORS 138.222(5)(b) (2015),
repealed by Or Laws 2017, ch 529, § 26 (“If the appellate court, in a case involving
multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the
case to the trial court for resentencing on the affirmed count or counts.”).
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briefly, but she moved back in with defendant in 2010. Defendant, A, and their two children continued to live together
until at least April 2016.
         According to A, defendant physically and verbally
abused her throughout their relationship, and the physical
violence escalated starting around 2014. According to defendant, A is fabricating the abuse, and he never abused her.
The charges in this case relate to six specific incidents of
domestic violence between June 2014 and April 2016, which
are described here consistently with the trial court’s ultimate judgment:
    •   In the first incident, A left the house after an argument with defendant. Defendant called A repeatedly, demanding that she return home. When A
        returned, defendant grabbed her by the hair and
        dragged her into the house while yelling at her.
    •   In the second incident, defendant came into the bedroom while A was sleeping and woke her by yelling
        and screaming. He pointed a handgun at her and
        fired two rounds into the bed as she lay on it.
    •   In the third incident, defendant “waterboarded” A
        by zip-tying her hands, pinning her to the bathtub,
        putting a cloth over her mouth, and pouring water
        over her face. He was trying to get A to “tell the
        truth” about relationships with other men.
    •   In the fourth incident, defendant pointed a firearm
        at M.
    •   In the fifth incident, defendant grabbed A by the
        neck, held a kitchen knife to her throat, and told
        her to be honest or he would kill her.
    •   In the sixth incident, defendant woke A by thumping her on the head, demanded that she tell the
        truth about an affair, put a gun to her head, and
        threatened to kill her.
        A called the police in April 2016. According to A,
she had intended never to report the abuse, but she realized
after the last incident that defendant was actually going
196                                          State v. Carrillo

to kill her, whether she reported it or not, so she might as
well report it. During the ensuing investigation, the police
searched defendant and A’s bedroom, with A’s consent, and,
as discussed more later, seized evidence related to the second incident listed above.
         Defendant was indicted on 26 counts of UUW,
menacing, assault, coercion, strangulation, and attempted
strangulation, as to A. He was separately charged with one
count each of UUW and menacing as to M. The two cases
were consolidated for trial. Before trial, defendant moved
to suppress the evidence seized from his bedroom, arguing that A lacked authority to consent to the search. The
trial court denied that motion. Also before trial, the state
moved to admit evidence of defendant’s uncharged acts of
domestic violence against A and three other women. The
court admitted some of that evidence under OEC 404(3),
as relevant to hostile motive. Only the evidence related to
one woman—defendant’s former intimate partner B—is at
issue on appeal. The state did not offer any evidence at trial
about the other two women, and, on appeal, defendant does
not challenge the admission of evidence of prior bad acts
against A.
        Defendant waived his right to a jury and was tried
to the court. The trial lasted seven days. At the close of
the state’s case, defendant moved for judgment of acquittal
on two of the UUW counts, Counts 15 and 18, which was
denied. Ultimately, the trial court found defendant guilty
on 16 charges, resulting in the previously described convictions. Defendant appeals.
                 MOTION TO SUPPRESS
         Before trial, defendant moved to suppress certain
evidence seized from his bedroom, and he argues on appeal
that the trial court erred in denying that motion. We review
the denial of a motion to suppress for errors of law. State v.
Voyles, 

, 

, rev den, 

 (2016). We are bound by the trial court’s factual findings,
so long as they are supported by constitutionally sufficient
evidence, and, if findings were not made on all pertinent historical facts, we presume findings consistent with the trial
court’s ultimate conclusion. 

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         The facts relevant to the motion to suppress are as
follows. In April 2016, the police investigated A’s report of
domestic violence. During the investigation, A told officers
that defendant had once fired a gun into the bed while she
was laying in it and that the bed and mattress were still at
the house. The officers visited the house and requested A’s
consent to search the master bedroom. (Defendant was not
present, because he had been arrested a few days earlier
and was in jail.) At that time, A had been living with defendant in the house for six years, since she returned after their
divorce. Although the title to the house was in defendant’s
name, A and defendant refinanced the mortgage together, A
paid the mortgage payments, and A also paid rent to defendant. In addition to sharing the house generally, A specifically shared the bedroom with defendant, and the bed in
that bedroom had been her exclusive sleeping location in the
house for six years. A’s clothes were in the bedroom closet,
and her personal items were all over the bedroom.
         A gave consent for the police to search the bedroom,
including the bed. When the officers entered the bedroom,
there were two visible bullet holes in the bed cover. The officers searched the bed and found additional bullet holes in
the sheets, in a pillow, in the mattress, in the box spring,
and in the carpet under the bed. The officers seized each
of those items, including cutting out a small piece of carpet
around the bullet hole in the carpet. The officers also seized
some personal items lying under the bed—a receipt, photos,
a poster, and a tote bag—that had visible bullet holes in
them.
        Before trial, defendant moved to suppress the evidence from the bedroom, arguing that A lacked authority
to consent to the search and the seizures. The trial court
denied the motion, concluding that A had legal authority to
consent. On appeal, defendant claims that that was error,
emphasizing that the title to the house was in his name and
that the bed was awarded to him in the divorce.
        Article I, section 9, of the Oregon Constitution protects people “against unreasonable search or seizure.” Warrantless searches are per se unreasonable, unless the state
establishes the applicability of an exception to the warrant
198                                                State v. Carrillo

requirement. State v. Bonilla, 

, 

 (2015).
Consent is one such exception. To establish that exception,
the state “must prove by a preponderance of the evidence
that someone having the authority to do so voluntarily gave
the police consent to search the defendant’s property and
that any limitations on the scope of the consent were complied with.” State v. Weaver, 

, 

(1994).

          For purposes of Article I, section 9, a third party
must have actual authority to consent to a search of someone else’s property. Nelson v. DMV, 

, 

 (2019). With respect to cohabitants, the court looks
“at whether the effects are communally used by the parties
… or exclusively used by one party.” State v. Fuller, 

, 

 (1999). To establish “common
authority,” the state must prove “mutual use of the property by persons generally having joint access or control for
most purposes.” State v. Jenkins, 

, 

 (2002). As explained in Jenkins, the concept of common
authority is distinct from legal ownership:
      “The authority which justifies the third-party consent does
      not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use
      of the property by persons generally having joint access or
      control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit
      the inspection in his own right and that the others have
      assumed the risk that one of their number might permit
      the common area to be searched.”

         Common authority over a space does not necessarily
equate to common authority over all items within the space.
“[A]uthority to consent to a search of an area is not necessarily co-extensive with authority to consent to a search of
personal items within that area.” Fuller, 

.
The scope of a third party’s authority over an area or an
item is a fact-specific inquiry that depends on the “relationship of the third party to the premises or things searched.”

.
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         Here, the trial court did not err in denying defendant’s motion to suppress. It is common authority, not
legal ownership, that confers actual authority to consent
to a search. Jenkins, 

. In this case, the
evidence was sufficient for the court to find that A shared
common authority with defendant over the bedroom and
the bed. Specifically, there was evidence that A had been
living in the house for six years, had been sharing the bedroom and the bed with defendant for six years, kept her
clothes in the bedroom closet, and had personal items all
over the bedroom. There was no evidence that A’s authority over the bedroom or the bed was limited. See State v.
Kurokawa-Lasciak, 

, 

 (2012)
(“[W]here a defendant has expressly or by implication limited a co-occupant’s authority, the resulting consent depends
on whether the search is within that limited authority.”).
Nor did the officers search an item used exclusively by
defendant. See Fuller, 

 (reversing denial of
motion to suppress, where, even if the defendant’s girlfriend
had common authority over their bedroom, she did not have
authority to consent to a search of the defendant’s nightstand, after having told the police that it was the defendant’s, that it was locked, and that she did not have a key).
         To the extent defendant argues that, even if A had
authority to consent to the search of the bedroom and the
bed, she lacked authority to consent to the seizures, we
reject that argument. Defendant relies on Voyles, in which
we recognized that searches and seizures “implicate different but related constitutional interests, namely, an individual’s privacy and possessory interests in personal property,”
and “are separate acts calling for separate analysis.” 

 (internal quotation marks omitted). In Voyles,
the defendant was boarding her horses at other people’s
properties. 

. The property owners consented to
the police searching their properties and seizing the defendant’s horses. 

 We held that the evidence was sufficient to
establish that the third parties had actual authority to consent to the searches of their own properties but that it was
insufficient to establish their authority to consent to the seizure of the defendant’s horses, when the horses were merely
boarded there. 

. “In other words, the third-party
200                                           State v. Carrillo

property owners could not hand over horses that they did
not have a legal right to hand over by virtue of the simple
boarding relationship.” 

         In this case, unlike Voyles, A was a cohabitant with
defendant who shared common authority over the bedroom
and the bed. There was nothing akin to the mere boarding
relationship in Voyles, and defendant has not presented a
developed argument as to how A could have shared common authority over the bed and its components for search
purposes but not for seizure purposes. Moreover, unlike the
horses in Voyles, the mattress, box spring, bed cover, sheets,
pillow, and carpet piece were recognizable evidence of a
crime. See 

 (discussing a case in which we held
that an officer could seize a bag that the defendant had left
in a friend’s car, with the friend’s consent, even if the friend
lacked authority to consent to a search of the bag, where the
officer recognized the bag itself as evidence of a crime). As
for personal items under the bed, including the receipt put
into evidence at trial, those items were in plain view once
the other items were lawfully seized and were also recognizable evidence of a crime due to containing bullet holes.
See State v. Sargent, 

, 

 (1996)
(“One rationale for permitting seizure of evidence in plain
view is that no unlawful search, and thus no illegality, was
required to discover it.”); see also Voyles, 

(citing Sargent for the proposition that law enforcement officers who make lawful entry into a private space may seize
personal property within that space if they see evidence of a
crime in plain view).
        The trial court did not err in denying the motion to
suppress.
              PRIOR BAD ACTS EVIDENCE
         Defendant next argues that the trial court erred
in admitting evidence of uncharged prior bad acts against
his former intimate partner B. The trial court granted the
state’s pretrial motion to admit the evidence under OEC
404(3) as relevant to motive, specifically defendant’s hostile motive toward A as a member of a class, to wit, intimate partners. Defendant argues that the court erred in
admitting the evidence under OEC 404(3), because it was
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not relevant to hostile motive and was merely propensity
evidence. Under OEC 404(3), “[e]vidence of other crimes,
wrongs or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity
therewith,” but it is admissible if it is relevant to noncharacter purposes, such as motive, subject to OEC 403 balancing.
The state defends the trial court’s ruling, arguing that the
evidence was relevant to motive and that, in any event, any
error was harmless.

         Whether evidence of prior bad acts is relevant to
motive is a question of law, State v. Carreiro, 

, 

 (2002), that turns on “whether the state
showed the existence of an adequate logical connection
between the other acts and the charged acts,” State v. Tena,

, 

 (2018). In this case, we assume
without deciding that the trial court erred in admitting B’s
testimony and proceed directly to the question of harmlessness, because it is dispositive.

         As a matter of constitutional provision, statute, and
rule, we may not reverse a judgment based on the erroneous
admission of evidence if the error did not substantially affect
defendant’s rights, i.e., was harmless. See State v. Davis,

, 

 (2003) (discussing Article VII
(Amended), section 3, of the Oregon Constitution); former
ORS 138.230 (2015) (“After hearing the appeal, the court
shall give judgment, without regard … to technical errors,
defects or exceptions which do not affect the substantial
rights of the parties.”);2 OEC 103 (“Evidentiary error is not
presumed to be prejudicial.”). The standard reduces to “a
single inquiry: Is there little likelihood that the particular
error affected the verdict?” Davis, 

. To make
that determination, “we examine the record as a whole and
consider the error and the context in which it occurred.”
State v. Durando, 

, 

, adh’d
to as modified on recons, 

, 

,
rev den, 

 (2014).
    2
      Former ORS 138.230 (2015) was repealed by Oregon Laws 2017, chapter
529, section 26, for judgments entered on or after January 1, 2018. Or Laws 2017,
ch 529, § 28. Because the judgment in this case was entered before that date,
former ORS 138.230 (2015) is still applicable.
202                                           State v. Carrillo

          Here, five considerations lead us to conclude that
there is little likelihood that any error in admitting B’s testimony affected the trial court’s judgment in this case. See
State v. Marks, 

, 

 (2017) (“On
a trial to the court without a jury, the trial court’s judgment
is the same as a jury verdict.” (Internal quotation marks
omitted.)). First, this was a bench trial, the court essentially
instructed itself not to consider the prior-acts evidence as
character evidence, and nothing in the record indicates that
the court nonetheless considered it as character evidence.
Second, although B’s testimony placed defendant in a very
poor light, it paled in comparison to the evidence regarding A—including evidence of a long history of defendant
physically, verbally, and emotionally abusing A and threatening to hurt her, kill her, take their children, and so on—
making the evidence regarding B of a lesser quality than
other, unchallenged evidence. Third, B’s testimony was
a relatively small part of a lengthy trial, and the state
discussed but did not rely heavily on that evidence in its
arguments to the court. Fourth, there was overwhelming
evidence of the charged crimes, including numerous corroborating witnesses, medical evidence, and physical evidence,
such that this was not a case in which the trial came down
to a one-on-one credibility contest between defendant and
A. Fifth, the ultimate judgment entered by the trial court is
at least some indication that the court carefully considered
the evidence as to each charged crime, rather than making
sweeping inferences about defendant’s character and resulting conduct.
         Having provided that brief overview of the considerations that lead us to conclude that any error was harmless,
we now expound on each one.
         First, this was a bench trial, and the trial court
essentially instructed itself not to consider any prior-acts
evidence as character evidence. Even if the court was mistaken in concluding that the evidence regarding B had some
relevance to motive, it does not necessarily follow that, once
the evidence was admitted, the court improperly considered it as propensity evidence. Defendant argues that any
erroneous admission was not harmless because the court
may have relied on the evidence “to make impermissible
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inferences that defendant was likely to have committed the
crimes against [A] because he had a propensity for domestic violence in his past.” But the court expressly denied the
state’s request to admit the evidence as character evidence
under OEC 404(4), indicating that it likely would not survive
OEC 403 balancing if admitted for that purpose, and, at the
beginning of B’s testimony, it revisited and maintained that
ruling. Although it is possible that the trial court conflated
motive with character in admitting the evidence at all, that
is not the only explanation for any error in admitting it, and
the specificity of the court’s ruling on the character issue
is at least some indication of harmlessness. We generally
presume that trial courts follow their own rulings. See State
v. Colby, 

, 

 (2018) (a trial
court’s self-instructions in a bench trial are comparable to
jury instructions).3
         Second, B’s testimony undoubtedly placed defendant in a very poor light. B testified about their three-year
relationship, which began when she was 18 years old and
lasted from 1988 to 1991. B testified that defendant became
increasingly jealous and accusatory over time and often
accused her of having affairs. She gave examples of defendant accusing B’s landlord of having an affair with B and
getting into a fight with him, which resulted in B’s eviction,
and defendant coming to her workplace and accusing her of
having affairs with co-workers, which resulted in B losing
her job. She testified that defendant was verbally abusive
and controlling, including timing her absences from the
apartment, accusing her of cheating on him if she was gone
longer than he thought necessary, and sleeping in front of
the door with a gun to prevent her from leaving or answering the door. She testified that defendant threatened her
on multiple occasions, including holding a gun to her head,
pointing a gun at her and their three young children, and,

     3
       Relatedly, when a case is tried to the bench, we presume that the trial court
will make its decision based on the trial evidence, even if it is aware of a particular defendant’s criminal history from other proceedings, or even if it has been
exposed to evidence of a defendant’s uncharged prior bad acts in pretrial hearings. That is, trial judges are often in the position of having to consciously disregard propensity information and the propensity aspects of evidence to conduct a
fair trial, and we necessarily rely on their having the training and discipline to
do so.
204                                            State v. Carrillo

after she got a restraining order, breaking in and threatening to kill her. B also testified to physical violence, including
forced sex that resulted in a pregnancy, and a shove and a
punch in the stomach when she was five months pregnant.
         There is no question that such evidence, to the
extent the trial court found it credible, reflected very poorly
on defendant. At the same time, defendant’s relationship
with B had ended 25 years before trial, and the unchallenged
evidence of defendant’s prior bad acts against A herself was
both more extensive and more recent than the evidence of
prior bad acts against B. There is little purpose in describing
all of that evidence in detail—which was submitted over the
course of a seven-day trial—but suffice it to say that there
was extensive evidence that defendant had physically, verbally, and emotionally abused A on a regular basis throughout their nearly 10-year relationship, including evidence of
numerous uncharged acts of domestic violence against A.
In deciding whether there is little likelihood that an error
in admitting evidence affected the verdict, “we assess any
differences between the quality of the erroneously admitted
evidence and other evidence admitted on the same issue.”
State v. Nguyen, 

, 

 (2018)
(internal quotation marks omitted). Here, even if the trial
court theoretically improperly considered A’s testimony as
evidence of his propensity to commit domestic violence, there
was stronger, more current evidence of defendant’s propensity to commit domestic violence against A in particular.
         Third, how the parties actually used the challenged
evidence at trial is a factor in determining whether any
error in admitting that evidence was harmless. E.g., State v.
Wood, 

, 

 (2012) (holding that error
in admitting statements was not harmless, in a bench trial,
where the disputed statements were among the first that the
victim made about the alleged abuse, the state emphasized
those statements in its closing statement, and they were corroborated by another witness in a way that appeared influential to the trier of fact). In this case, although B’s testimony was by no means insignificant in duration or content,
it was a relatively small part of a lengthy trial. Moreover,
the trial court had indicated during pretrial that it was not
predisposed to give much weight to evidence of defendant’s
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long-ago domestic violence against other women, even as
relevant to hostile motive, characterizing it as just “one person’s testimony against another.”

          At trial, with respect to defendant’s prior domestic violence against other woman, the state put on evidence
only regarding B, and it consistently tied that evidence to
its motive theory. In opening statement, the prosecutor
described B’s expected testimony near the end of a long opening statement that until then had focused entirely on defendant’s alleged conduct toward A. The prosecutor said that
B would testify to physical, sexual, emotional, and psychological abuse while she dated defendant from 1988 to 1991
and had three children with him; gave two one-sentence
examples of B getting evicted and fired due to defendant’s
jealousy and cheating accusations; and argued that “he did
it all, as he did with [A], to control her and to exact whatever revenge he felt he needed to for wrongs that had always
been committed against him.” Similarly, in closing, the
state argued that defendant sought to make intimate partners pay for cheating on him, or for the risk that they might
cheat on him, with beatings, abuse, threats, and intimidation, and that “you have seen this motive, not only through
the relationship with [A], you saw it with [B].” Although B’s
testimony was certainly part of the state’s case, the state
did not rely heavily on it in its arguments to the court, and
it consistently tied that evidence to motive arguments.

         Fourth, there was overwhelming evidence of the
charged crimes, including numerous corroborating witnesses, medical evidence, and physical evidence. In evaluating harmlessness, we focus “on the possible influence of
the error on the verdict rendered, not whether this court,
sitting as a factfinder, would regard the evidence of guilt as
substantial and compelling.” Davis, 

. Although
we do not independently weigh the evidence, we nonetheless
“consider[ ] the significance of challenged evidence in light of
the presence or absence of other overwhelming evidence of a
defendant’s guilt,” recognizing that “the less substantial the
evidence of guilt, the more likely it is that an error affected
the result.” State v. Dowty, 

, 

(2019) (internal citations and quotation marks omitted).
206                                         State v. Carrillo

          Defendant’s trial was not a one-on-one credibility
contest between him and A. See State v. Mackey, 

, 

, adh’d to as modified on recons, 

, 

 (2018) (erroneous exclusion of evidence
was not harmless in a case that “largely came down to a
credibility contest between the victim and defendant”). The
state presented a total of 30 witnesses. Many witnesses corroborated A’s testimony, both as to defendant’s abuse generally and as to specific incidents, including friends, neighbors, coworkers, and defendant’s son M. Defendant’s and A’s
young daughters corroborated hearing fighting, hearing A
telling defendant to stop, and seeing defendant with a gun.
There was medical and psychological evidence. There was
also physical evidence, such as photographs of injuries, evidence of bullet holes from defendant and A’s bedroom, and
zip ties found in defendant’s truck.
         Fifth, although a relatively minor consideration, the
fact that the trial court ultimately found defendant guilty of
only 16 of the 28 charged crimes, one being a lesser included
offense of the charged crime, is at least some indication that
the court carefully considered whether the state had met
its burden of proof as to each charged crime, rather than
painting with a broad brush because it viewed defendant as
having a bad character.
         Given all of the foregoing considerations, any error
in admitting B’s testimony was harmless. In so concluding,
we do not underestimate the potential prejudice of evidence
of uncharged prior bad acts. Indeed, it is the rare case in
which evidence like B’s testimony could be improperly
admitted with little likelihood of affecting the verdict or
judgment. Upon review of the entire record, however, this
is such a case. We therefore reject defendant’s third assignment of error.
      MOTION FOR JUDGMENT OF ACQUITTAL
        The final issue is whether the trial court erred
when it denied defendant’s motion for judgment of acquittal
on Counts 15 and 18, two of the UUW charges.
        As relevant to Counts 15 and 18, “[a] person commits the crime of unlawful use of a weapon if the person …
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[i]ntentionally discharges a firearm … within residential
areas within urban growth boundaries at or in the direction
of any person … without having legal authority for such
discharge.” ORS 166.220(1)(b) (emphasis added). Defendant
argues that the state presented insufficient evidence to convict him because, although there was evidence that defendant discharged a firearm without legal authority at his
house in a residential area, there was no evidence that his
house was located within an urban growth boundary.

          The state responds that the trial court correctly
denied defendant’s motion for judgment of acquittal, because
he was really challenging the sufficiency of the indictment,
which is a challenge that must be brought by demurrer. See
ORS 135.630(4) (“The defendant may demur to the accusatory instrument when it appears upon thereof … [t]hat
the facts stated do not constitute an offense.”). The state
notes that the indictment in this case is deficient in that it
omits the “within urban growth boundaries” element of the
UUW offense. See State v. Samuel, 

, 

 (2017) (an element is material to the offense if the
indictment does not state an offense without it). As to both
Counts 15 and 18, the indictment alleges that defendant,
“on or between the 1st day of January 2014 and the 1st day
of April 2015, in Deschutes County, Oregon, did unlawfully
and intentionally discharge a fireman within a residential
area … at or in the direction of [A] within the range of such
discharge.” (Emphasis added.) The state argues, essentially,
that defendant had to demur to raise that issue and could
not raise it in a motion for judgment of acquittal.

        The state relies on State v. Hankins, 

,

 (2007). In that case, the defendant was indicted
and tried on four counts of felony delivering marijuana to
a minor in violation of former ORS 475.995(5) (1999). As to
each count, the indictment charged that the defendant “did
unlawfully and knowingly deliver a controlled substance,
marijuana, to a person under 18 years of age.” Hankins,

. At the close of the state’s case, the defendant
moved for judgment of acquittal, arguing that the indictment was deficient “because it failed to allege that he was
18 years of age or older and that the victim was at least three
208                                          State v. Carrillo

years younger than he was,” as required for the charged
crime. 

 The trial court denied the motion on the basis
that there was sufficient evidence for a reasonable jury to
find that defendant was 18 years of age or older and that the
victim was at least three years younger than him. 

         “When [the defendant in Hankins] objected that he
was challenging the sufficiency of the indictment, not the
sufficiency of the evidence, the trial court explained that a
demurrer was the proper way to challenge the sufficiency
of an indictment.” 

 (emphasis added). We affirmed the
denial of the motion for judgment of acquittal, and the
Supreme Court affirmed. 

. As explained in
Hankins, when a defendant moves during trial for judgment
of acquittal based on an insufficiency of the indictment, and
the trial court declines to allow it as a late demurrer, the
motion should be treated as a premature motion in arrest of
judgment, denied with leave to renew after verdict, and then
addressed on the merits in the event that the defendant is
convicted. 

 (relying on State v. McKenzie, 

, 

 (1989)). The trial court therefore did
not err in denying the motion for judgment of acquittal in
Hankins, as that was not the correct vehicle for a challenge
to the sufficiency of the indictment. Id. at 266-67. Notably,
the trial court did instruct the jury on the element missing
from the indictment (regarding the defendant’s and the victim’s ages), and the defendant did not contest the sufficiency
of the state’s evidence at trial on that element. Id. at 261-62
n 6.
         Unlike the situation in Hankins, defendant in this
case unequivocally challenged the sufficiency of the evidence,
not the sufficiency of the indictment. Moreover, the state
does not contest that the evidence was insufficient to prove
that the discharge alleged in Counts 15 and 18 occurred
“within urban growth boundaries.” ORS 166.220(1)(b).
A motion for judgment of acquittal is precisely the correct
vehicle to challenge the sufficiency of the evidence. See ORS
136.445 (“In any criminal action the defendant may, after
close of the state’s evidence or of all the evidence, move the
court for a judgment of acquittal. The court shall grant the
motion if the evidence introduced theretofore is such as
would not support a verdict against the defendant.”); City of
Cite as 

 (2020)                            209

Portland v. Miller, 

, 

 (1983)
(a motion for judgment of acquittal “tests the sufficiency of
the evidence to support a verdict”); see also State v. Mayer,

, 

 (1997) (“ ‘Insufficiency of
evidence’ is not a legitimate ground for a motion in arrest of
judgment[.]”).
         The only question here is whether the omission of
the “urban growth boundary” element from the indictment
excused the state from proving that element, thus defeating
the motion for judgment of acquittal. Neither party squarely
addresses that issue on appeal. However, we are not aware
of any authority that would allow defendant to be convicted,
notwithstanding an absence of evidence on a material element, on the sole basis that that element was omitted from
the charging instrument. Rather, it is our understanding
that, even if the defendant does not move against an accusatory instrument as asserting facts that do not constitute
an offense, the state still needs to prove facts sufficient to
support a verdict on the charged crime. Thus, for example,
the defendant in Hankins was convicted on sufficient evidence, even though the indictment was deficient on its face.
See Hankins, 

-62 n 6.
         It follows that defendant was entitled to judgment
of acquittal on Counts 15 and 18, given the lack of evidence
that the unlawful use of a weapon occurred “within urban
growth boundaries.” ORS 166.220(1)(b). Although defendant
could have demurred or moved in arrest of judgment based
on the pleading deficiency, we see no reason that he had
to do so, if he preferred to test the state’s evidence instead
of challenging the indictment on procedural grounds. The
trial court therefore erred in denying defendant’s motion for
judgment of acquittal on Counts 15 and 18.
         Convictions on Counts 15 and 18 reversed; remanded
for resentencing; otherwise affirmed.